"...if we understand that there are good
evolutionary reasons for our wanting people to suffer when they have
done direct or indirect harm to us, then we can account for our strong feelings
about the appropriateness of retribution without presuming they are a guide to
moral truth.... We may be able to recognize our retributivist feelings as a deep
and important aspect of our character - and take them seriously to that extent -
without endorsing them as a guide to truth, and start rethinking our attitudes
toward punishment on that basis."---Janet
Radcliffe Richards, Human Nature After Darwin, p. 210

Neuroscientist Michael Gazzaniga says “brains are
determined; people are free.” This means freedom and
responsibility are compatible with being neurologically determined creatures.
But strangely enough, Gazzaniga also says we remain free and responsible even if
the brain is compromised in its capacities for rationality and impulse control.
He therefore holds that the insanity defense is misguided. On a neuro-deterministic account of free and responsible
action, such a view is manifestly self-contradictory.

In a commissioned
paper and recent book,[1]
Dartmouth neuroscientist Michael Gazzaniga joins the debate over moral
responsibility generated by our burgeoning understanding of the brain. The
problem seems to be that in order to hold people responsible, they have to have
free will, but neuroscience shows our brains are deterministic mechanisms.
So how can we hold each other responsible? The solution Gazzaniga proposes
is that “brains are determined; people are free.”

To the unwary, this might suggest that people are free
because they aren’t determined. But a careful reading of Gazzaniga reveals
that this is not at all what he means. In a chapter of his book called “My
brain made me do it,” he endorses A. J. Ayers’ compatibilist notion of
free will, which holds that free will and responsibility are compatible with
determinism (italics are in the original, underlining is
added):

In 1954, A. J. Ayer put forth the theory of “soft
determinism.” He argued, as had many philosophers such as David Hume,
that even if determinism exists, a person can still act freely. Ayer
posits that free actions result from desires, intentions, and decisions
without external compulsion or constraint. He makes the distinction
between free action and constrained action (not between uncaused and caused
action). Free actions are those that originate in oneself, by one’s
own will (unless one is suffering from a disorder) whereas
constrained actions are those caused by external sources (for example, by
someone or something forcing you physically or mentally to perform an action
under hypnosis, or by disorders like kleptomania). When someone
performs a free action A, he or she could have done B. When someone is
constrained to do A, he or she could only have done A. Ayer
thus argues that actions are free as long as they are not constrained.
Free actions depend not on the existence of a cause, but rather the source
of the cause. Though Ayer did not explicitly discuss the brain’s role, one
could put it in terms of the brain: the brain is determined, but the person
is free (pp. 98-99, The Ethical Brain).

So, on Gazzaniga’s view of freedom and responsibility,
people’s actions and their wills are just as determined as their brains.
And indeed, this is what neuroscience tends to show. The neural mechanisms
of the brain give rise, in the context of the rest of one’s body and
environment, to the phenomenon of a unique, conscious individual who can act
deliberately and rationally. But there is nothing about these processes which
could endow the person with a sort of freedom exempt from causality. If
brains and bodies are determined, then so are people, since nothing
contra-causal arises as personhood emerges.

Since freedom and responsibility
are not a matter of being uncaused, but a matter of one’s actions being
unconstrained (that is, uncoerced) and caused
by a disorder-free brain, one would suppose that the brain’s health would figure
in our ascriptions of responsibility. And indeed it does, since we don’t
ordinarily hold people responsible who suffer from neural defects that seriously
compromise rationality and impulse control. People with such defects are
incapable of conforming their behavior to the law since they can’t properly
anticipate or fear criminal sanctions, so it would be unfair to punish them.
Rather we treat them (occasionally curing them) so that they become
capable of behaving responsibly.

But strangely, and despite such commonsense
considerations, Gazzaniga says that “In neuroscientific terms, no one person is
more or less responsible than any other for actions” (pp. 101-2, The Ethical
Brain). Now, why would a neuroscientist who specializes in
understanding the difference between normal and abnormal brains say that the
state of a person’s brain is immaterial to responsibility? After all, such
a claim is manifestly counter to all our intuitions and practices concerning the
mentally ill. And it’s neuroscience that makes clear the connection between
brain defects and the irrationality and impulsivity that sometimes count as
exculpatory.

It could be that Gazzaniga wants to hold the line
against what Daniel Dennett calls “creeping exculpation.” Since brains,
healthy or not, are deterministic mechanisms that work “automatically,” as
Gazzaniga puts it, perhaps he thinks we need the idea of the categorically free
person
to sustain the idea of responsibility. But he’s said that freedom
and responsibility are compatible with our being, like our brains, fully
determined. And, he’s said, our acts are free “unless one is suffering
from a disorder.” So by Gazzaniga’s own lights we need a brain in good
working order to be held responsible. This makes his claim that all persons are
equally responsible, neural defects or not, self-contradictory, in addition
to being unworkable and unfair.

Just how unfair is revealed in
Gazzaniga's adamant opposition to the insanity defense. When asked about
it in an
interview with U.S. News and World Report, he says:

I never have [believed in the
insanity defense]. You know one of the reasons is if you look at
schizophrenics for example. Their rate of violent behavior is not above that
of the normal population, especially when they're on their medication. So,
if that's true, how can you use that as a defense, that they're doing
something because they're insane. But the notion of personal responsibility
has to do with the fact that people follow rules because they're in a social
group and people with these various kinds of disorders can still follow
those rules.

Asked about sociopaths with brain
abnormalities, he continues:

You can always quote an extreme case and there
certainly are some pretty extreme cases out there. But the vast majority of
it is really dealing with people who know how to follow rules, can follow
rules, and they choose not to follow rules. And there should be a
consequence for that. I think we've just gone way over in the other
direction in the thinking that we understand mechanisms that would excuse
somebody from following those rules.[2]

Gazzaniga, remarkably, discounts
his own neuroscientific evidence on the contribution of neural defects to
behavior when he says the seriously mentally ill simply "choose not to follow
rules." On his own construal of free choice, significant brain-based
mental disorders such as schizophrenia
and psychopathydo
compromise capacities for rationality and impulse control, and thus for morally
responsible choices.** Demanding personal responsibility is all well and good,
but to demand it of those whose rule-following capacities are objectively
compromised is itself draconian and irresponsible. If, as Gazzaniga suggests, we
should punish the seriously mentally ill, this undermines the very basis for our
responsibility practices, which holds that punishment is only justified for
those for whom the prospect of punishment serves as an effective deterrent.
Applying it outside such constraints is the gratuitous infliction of suffering
for no good reason, except to toe a very hard, retributive line on criminal
justice, consistent with that taken by the conservative administration he serves
as a member of the president's Bioethics Commission. (**See
here for a paper by UPenn law professor Stephen Morse arguing that "psychopaths
lack moral rationality and that severe psychopaths should be excused from crimes
that violate the moral rights of others.")

It’s true, as Gazzaniga says in his
book, that responsibility is a human construct, designed to manage social
interactions. Nevertheless, our conception of responsibility must conform
to what we know about brains and about persons, otherwise contradictions
and injustices will surface as the law meets science.[3]
If neuroscience teaches us anything, it’s that a properly functioning brain
subserves the higher-level capacities that our responsibility practices engage –
our capacities for anticipation, deliberation, and self-control. When the
brain is defective, then indeed we can justly say on the basis of neuroscience
that some people are less able to behave responsibly than others: they
can’t properly anticipate, conform to, and thus be guided by legal sanctions.
Neuroscience won’t find responsibility in the head, but it can most definitely
help decide whether a particular person has the (fully determined) capacity for
being held justly accountable. Contrary to Gazzaniga's claim,
in neuroscientific terms people aremore or less responsible than
others, depending on the state of their brains. On a naturalistic,
materialist understanding of ourselves, science and the law can cooperate; they
need not carve out incompatible domains of mechanism and responsibility.

TWCAugust 2005,
revised August 2009

Notes

1.
His paper is “Free will in the 21st century,” published in
Neuroscience and the Law, Brent Garland and Mark S. Frankel, eds., Dana
Press, New York, 2004. His book is
The Ethical Brain, Dana Press, 2005, insightfully reviewed by
neurophilosopher Patricia Churchland
here. Chapter 6 of the book, “My Brain Made Me Do It,” is adapted
from the paper.

2.
That Gazzaniga doesn’t think the insane should be excused
also comes up
in his response to a question about
the insanity defense in his
Author Interview at American Scientist, the 4th question. He
ends his remarks on this saying
“Schizophrenics stop at red lights.”

3.
In her
review of The Ethical Brain, Patricia Churchland reaches much the
same conclusion.

____________________________________________________________

Delegitimizing Retribution

Writing in the Boston Globe on “Revenge and the
death penalty,” libertarian Cathy Young defended retribution as a central aim of
criminal justice, even as she came out against capital punishment.[1]
She concluded her piece saying: “Death penalty opponents have a strong case.
But as long as they deny the legitimacy of retribution, their arguments are
likely to fall flat.” At first glance, this seems to stake out a
reasonable middle ground with broad appeal: concede the merits of retributive
justice, but stop short of executions.

But on closer consideration, denying the legitimacy of
retribution looks increasingly plausible, and it makes for a stronger case
against capital punishment. The scientific understanding of the human animal,
which shows character and behavior to be completely caused by environmental and
genetic factors, challenges the traditional notion of contra-causal freedom
ordinarily used to justify retribution. In particular, cognitive
neuroscience is unraveling the mysteries of the brain, calling into question the
freely willing mind or soul that many Americans suppose is the deeply deserving
target of retributive justice. Without such a target, the claim that
offenders should nevertheless receive their just deserts is difficult to defend.
Making this point against retribution is a perfectly reasonable strategy in
opposing the death penalty and other unnecessarily punitive sanctions, support
for which is largely driven by retributive emotions.[2]

At a recent conference at the conservative American
Enterprise Institute, Princeton neurophilosopher Joshua Greene argued that once
the soul and causality-defying free will go, retribution goes too.[3]
Whatever our crimes, we are not blameworthy “deep down in our souls,” since we
don’t have such things.[4]
In which case, Greene said, we must drop retribution as an aim of criminal
justice in favor of deterrence, rehabilitation and public safety. Of
course, as he also pointed out, America isn’t ready for this, and may not be for
quite some time. Nevertheless, we have to start somewhere, and the growing
scientific consensus that we are fully natural creatures, not supernatural
little gods, is pushing this issue inexorably to the fore.[5]

In defending retribution, which she claims is
something other than mere state-sanctioned revenge, Young argues that it
restores “moral balance,” addresses “moral culpability,” satisfies our desire to
make offenders “pay” for their crimes, and expresses our “moral outrage.”
Notice, however, that all these functions of retribution, however principled
they may sound, require exactly what revenge requires: inflicting pain on
the offender at least proportionate to the pain he inflicted. Retributive
aims, like the urge for revenge, can only be satisfied by increasing the
net suffering in the world.

The question is, absent the contra-causal, freely
willing agent that deeply deserves to suffer, what justifies imposing penalties
beyond what’s necessary for such things as public safety, deterrence,
rehabilitation, and victim restitution? Some, like Susan Jacoby in her
book
Wild Justice (which Young cites in her op-ed), think that unless we satisfy
the public desire for retribution, the legitimacy of the law is called into
question and vigilante justice will run riot. Such pragmatism, however,
begs the important moral question of whether we should act on the desire,
whether public or private, to see offenders suffer for their suffering’s sake.

To say that offenders just deserve to suffer is
not to answer the question about retribution, but to block it. Lacking a
clear and compelling answer, the public may just be wrong in supposing that they
have an untrammeled right to their retributive satisfactions. In which
case we need to go about changing public attitudes and beliefs regarding
retribution (one of the goals of the Center
for Naturalism).

Some might argue that the victim’s wish to see the
perpetrator suffer or die should nevertheless count in our moral calculus as a
basic moral good, but if so, it must be weighed against other values that,
according to most ethical systems, should take precedence. We can’t carry
out executions or impose brutal prison sentences while simultaneously modeling
and encouraging the non-violent, considerate behavior we want as the social
norm. We can’t exact our pound of flesh and rehabilitate offenders
so that they become productive citizens who no longer endanger society. On
balance, do we want a culture in which retribution trumps more progressive
goals? For that is the choice we face.

In the light of science, we can see that there is no
ultimately blameworthy agent, independent of the conditions that shape a person,
that merits either execution or degradation by punitive imprisonment. In
the light of our best ethical instincts, we can see that retribution is unworthy
of us as creatures who seek our better natures. We can and must deny its
legitimacy if we are to make moral progress and build a more enlightened
society.[6]

TWC July, 2005

1.
Young, C., “Revenge and the death penalty,” Boston Globe
op-ed, May 23, 2005, reprinted
here.2.
See for instance, Clark, T., “Crime and causality: do killers deserve
to die?”, Free Inquiry V25, #2, 2005, online at
http://www.secularhumanism.org/library/fi/clark_25_2.htm. 3. Greene, J., “Dueling
dualisms: how the left, right and middle think about responsibility and the
brain”, presented at the American Enterprise Institute
(AEI) conference on The New Neuromorality, June 1, 2005,
online at
http://www.aei.org/docLib/200506011_greene.pdf. 4. At the AEI conference, the
denial of contra-causal free will was a common thread in the presentations
of cognitive psychologist Steven Pinker, law professor Stephen Morse, and
neurophilosopher Joshua Greene, and no one at the conference stepped forward
to defend the immaterial soul. The video of the entire proceedings is
linked at
http://www.aei.org/events/eventID.1072/event_detail.asp. 5. Yale Psychologist Paul
Bloom, author of Descartes Baby, said in a September 10, 2004
New York Times
op-ed piece that “The great conflict between science and religion in the
last century was over evolutionary biology. In this century, it will be over
psychology, and the stakes are nothing less than our souls.”6. Further details of this
critique of retribution are at
http://www.naturalism.org/criminal.htm, e.g., the
review immediately below.

__________________________________

Against Retribution

On Michael Moore’sPlacing Blame: A
General Theory of Criminal Law

Abstract: Intuitively, naturalism undercuts retributive
attitudes by showing that the causal story behind crime involves numerous
factors outside the individual. Although Michael Moore is entirely naturalistic
in his understanding of human behavior, he thinks any mitigation of retributive
judgments is unwarranted: retribution is an intrinsic good, and we should
discard our sympathies for disadvantaged offenders as "moral hallucinations." I
make the case that such sympathies are not misplaced, but reflect the fact that
our dispositions to punish and withhold punishment track causality itself. When
we understand the external factors that shaped the offender, retributive rage
diminishes in favor of a determination to address these factors. It is only by
ignoring the functional, forward-looking nature of morality that Moore can
portray retribution as an intrinsic good and the reigning moral principle of
criminal justice. Since the natural purpose of morality, including the
retributive impulse, is to shape behavior advantageously, we can and should
consider other more efficient and less punitive means to achieve the ends that
retribution originally served. This suggests the aims of criminal justice might
change under pressure from a thorough-going naturalism.
This review also appeared in the
Human Nature Review,
2003 Volume 3: 466-479 ( 17
November).

Inclusive naturalism – the
view that human beings and human behavior are completely included in the natural
world – implies that we don’t have libertarian free will, the capacity to cause
without being caused in turn. Under naturalism there are no causally privileged
agents that could have done otherwise in situations exactly as they arose. Those
sympathetic to naturalism often suppose that this view of human agents as only
proximate, not ultimate, originators of their behavior will attenuate the
tendency to place blame (or credit) solely on the individual. After all, factors
unchosen by the person play an essential role in shaping action, and when those
factors are appreciated, this can dampen our retributive impulses. And in turn,
as the desire for retribution diminishes, we are better able to look outside
the person to the wider causal context, with an eye to the more effective
prevention of future offenses.

However, Michael Moore’s theory of criminal law as set out in his book
Placing Blame is an example of how naturalism need not, it seems, imply any
change in our retributive attitudes towards wrongdoers. Although Moore accepts
naturalism, and sees moral responsibility as being compatible with determinism,
his compatibilism is what I will call the "hard" variety: he resolutely resists
any softening of retributive judgment in the light of determinism.

Those
such as myself, who find that considering the causal antecedents of behavior
does and should undercut the desire for retribution, are more likely to extend
mitigation to offenders, or at least think that mitigation might be
justified. Our understanding of the factors which produce crime might lead to
the transformation of retributive rage into a determination to attack its
causes, among which are punitive conditions found in many prisons, the very
expression of retribution itself. So we might mitigate or entirely withhold
harsh punishment in favor of more productive, non-punitive responses to an
offense. On Moore’s view, this "mitigation response" is simply a non-sequitur,
since carrying out retributive justice – the infliction of suffering on culpable
wrongdoers – is an intrinsic good which constitutes the central aim of criminal
law; no considerations of causality can or should deflect us from this aim. Even
if the suffering of the wrongdoer involves no utility in terms of deterrence,
incapacitation, or reform, it is still necessary to impose it to satisfy the
demands of justice. No softening of our retributive attitudes towards offenders,
nor any corresponding de-emphasis of retribution in favor of other ameliorative
responses, is justified by appreciating the manifold causes leading up to
criminal acts, according to Moore.

So
who’s right here? In what follows I will explore the difference between Moore
and myself using Placing Blame as the essential text, with references in
endnotes to other sources, especially Stephen J. Morse’s work (see references).
This essay, long as it is, can’t possibly do justice (so to speak) to his book,
which at 850 pages is encyclopedic in scope and complex in its arguments. But I
will try to present Moore’s case against mitigation fairly, as far as I
understand it, since it lies near the heart of his general thesis about criminal
law. Moore is by no means a raving retributivist out for blood, rather he
describes himself as a policy liberal in many respects. Yet his claims that
retribution is intrinsically good and necessarily central to our conception of
justice are eminently contestable, so contest them I shall. As a fellow
naturalist, I naturally want Moore on the side of those who would see less
suffering in the world, not its indefinite continuation as justified by and
embodied in retributive justice. The pursuit of retribution is itself arguably a
primary contributor to further violence, if recidivism rates following harsh
prison sentences are any indication. As B.F. Skinner pointed out long ago in
Beyond Freedom and Dignity, attempts to control via punishment generally
incite retaliation. (For a recent recommendation to follow the
anti-retributivist course I suggest in this paper, see Janet Radcliffe Richard's
fine book, Human Nature After Darwin, the chapters entitled "Blameless
Puppets" and "The End of Ethics." I strongly encourage reading the whole
book as a terrific and topical primer on naturalism and critical thinking.)

Moore’s naturalism

That
Moore is an unequivocal and inclusive naturalist may come as surprise to those
who imagine that the law necessarily involves a commitment to libertarian free
will, the idea that we are in some deep, metaphysical respect free from
determining causes. He spends a full chapter undermining what he calls the
"causal theory of excuse": the idea that since "true" behavior is uncaused or
undetermined except by the person, behavior that is caused by factors outside
the person should be excused. Moore quite rightly shows such a view to be
untenable, since, after all, human behavior is caused, fully a function
of the genetic and environmental situation as it unfolds. Determinism – the
central scientific postulate that permits the explanation of action – is
plausible for Moore since a special indeterministic, a-causal exemption for
human persons seems so patently implausible: "Is it not extraordinary to
think that agents who can clearly cause changes to occur in the world are
themselves uncaused? We are quite literally Aquinas’s uncaused causers – that
is, God – on such indeterminist views" (504).1

Moore
also captures well the motive behind resistance to the deterministic
thesis: "Both metaphysical and linguistic dualism are drastic doctrines.
Metaphysical dualism forces us to simply accept some inexplicable relations
between mind and body. Linguistic dualism forces us to grant ordinary usage a
priority over scientific theory that is very counterintuitive. The motive for
adopting either one of these drastic positions is the same: the desire to
preserve our ‘freedom and dignity’ in the face of advancing mechanistic science.
Unnoticed is that such drastic measures are unnecessary. To explain the mind in
terms of the brain, or even to identify the mind with the brain, is not to
explain the mind away…persons can be agents who act for reasons even in a world
in which all mental states and physical events are caused" (521).

Excuses and the function of punishment

So,
if we are all determined creatures, what should or could excuse criminal conduct
and what justifies holding people responsible? Moore, correctly I think,
identifies rationality, acting for reasons
("reasons-responsiveness") as the key component of responsibility and
culpability. If an agent at the time of the offense was sufficiently compromised
in her rational capacities, or coerced to act against her wishes, then she
should not be held responsible – she is excused. So we excuse young children,
the insane, and those under enough duress (e.g., at gunpoint) such that they
can’t act for the reasons they would normally.

But
why, we might ask, is the capacity and the opportunity to act rationally the
criterion of moral responsibility? Strangely enough, I don’t believe that Moore
in his 850 pages ever addresses this question directly, for reasons that I hope
will become clear below. I will spell out my answer now, since for those
concerned about the implications of naturalism for the law, the issue of
responsibility is often at the heart of their fears. It is an answer, moreover,
that Moore cannot accept given his commitment to retribution as the summum
bonum of the law, so to present it now will help to clarify where we differ.
How then, on my naturalistic account, can a robust notion of responsibility be
compatible with determinism, and why is rationality the main criterion of moral
agency?

For
non-retributivist, "soft" compatibilists such as myself, the answer is that
holding people responsible functions to shape morally acceptable
behavior, and since those who lack the capacity or opportunity to act rationally
cannot take moral injunctions into account, punishing them for transgressions
imposes needless and possibly very counterproductive suffering. It is the
capacity for rational appreciation of punishment as a possible outcome of one’s
offending, and being in a position to act on that appreciation, that
makes punishment (sometimes) justifiable as an effective deterrent. I might well
do things at gunpoint that I would never otherwise do, given my ordinary reasons
and what I know to be the usual sanctions. But to punish me for offenses
committed under such duress is unfair because I don’t need such sanctions
to redirect any future propensity of mine for offending; that propensity simply
didn’t and doesn’t exist. Similarly for very young children and the insane: they
simply aren’t capable of learning or retaining the moral lesson that is obvious
to the rest of us, that certain acts, being bad, are usually followed by social
sanctions. To apply sanctions against those who are incapable of appreciating
them or learning from them, or don’t need to be sanctioned in order to learn, is
unfair since no useful social function
is served by the suffering involved. Because punishment serves no function and
is thus gratuitous for such classes of persons, they are excused: they are
either not counted as moral agents or they are seen as acting under duress. The
notions of fair punishment and moral agency, then, are linked on this account to
the proper functioning of moral practices: the production of desirable
behavioral consequences while minimizing unnecessary suffering.

The
two main features this naturalistic account of moral responsibility shares with
Moore’s are that 1) libertarian, contra-causal free will plays no role in
determining responsibility (since such free will doesn’t exist), while 2)
rationality plays an essential role. All behavior is caused, but the
(mis)behavior that is justly liable to sanctions is only that produced by more
or less rational agents acting without coercion. To be a caused, but rational
and uncoerced, agent is to be a responsible agent. The main difference in
our accounts, I will argue, is that somehow Moore takes the rationality
criterion to justify (but how?) the intrinsic goodness of punishing the
culpable, whereas I take it, as explained above, to show the functional
necessity of punishing the culpable, if in fact such punishment serves
essential social ends unachievable through means that produce less suffering.
The differing implications of the views are stark: for Moore, the suffering of
the guilty is a positive good, an end in itself that need serve no other
purposes; for me, it is a sometimes unfortunate utilitarian necessity. Since we
champion differing ideas of what constitutes a desirable, just culture, the
issue between us is not academic, but rather has considerable practical
ramifications.

Moral reality, virtue, and conflict

Moore’s argument for the intrinsic good of retribution is based on a reading of
common intuitions about punishment. If we imagine cases of horrific crimes in
which (let us suppose) punishment of the offender would serve no non-retributive
aim, such as deterrence, reformation, incapacitation, etc., we find that we
still want to punish. For many, it seems intuitively wrong that someone who
has inflicted grievous harm upon us or those we love should not be made to
suffer in turn, even if this suffering has no benefits outside gratifying our
desire for retribution. Let us grant that this gut response is generally the
case: we all, pretty much, have retributive instincts. What follows from this?

For
Moore, the intensity and ubiquity of our retributive impulses is a sign of the
moral reality
that retribution is both intrinsically good and the primary aim of the law.
Emotions, he says, are "our main heuristic guide to discovering moral truths"
(181-2). And: "The moral fact of the matter often causes our moral
beliefs through the intermediate causing of our emotional responses. Our
emotions in such case become good evidence of the underlying moral landscape"
(183, my emphasis). Moore wants to move from an undeniable psychological fact -
that we have retributive inclinations - to the moral fact that retribution
reflects an objective moral reality in which giving offenders their just deserts
is required to satisfy the demands of justice.

But
Moore recognizes that retributive emotions often compete against other responses
when we think about criminal offenders. We may find, for instance, that when we
consider the tough circumstances of some criminals, we are moved to sympathy, a
sympathy that might offset to some extent the desire to impose suffering on the
offender. Why shouldn’t sympathy mitigate the degree of retribution sought?
Doesn’t it too reflect some sort of moral reality? If so, might it not suggest
other responses to crime, such as rehabilitation, restitution, and addressing
the multiple criminogenic factors revealed by behavioral science?

To
secure retribution’s pride of place, Moore adduces two considerations against
this line of argument. First, it is only virtuous emotions, he says,
which we should generally rely upon as heuristic guides to moral reality: "…in
ethics we should recognize that the virtue of (or vice) of an emotion may often,
but not always, be taken as an indication of the truth (or falsity) of the
judgment to which it leads" (137). Second, in developing an overall theory of
justice, he explicitly adopts a "coherentist" approach, in which the theory
seeks maximum overall consistency among our intuitions and judgments. (This
approach differs, for instance, from a foundationalist approach in which certain
first principles have privileged status and form the basis from which the rest
of the theory is derived.) Combining these two desiderata, the way we decide
which of our conflicting moral intuitions should be kept and which should be
discarded to achieve coherence, is to see which are based in virtuous emotions.
Virtue works as a guide to coherence.

Unsurprisingly, Moore argues the case that retributive emotions, at least some
of them, are virtuous, while the sympathy we feel for certain offenders is not.
Thus we can safely discard our errant sympathies, what Moore calls "moral
hallucinations" (132) since they distort our view of moral reality, and hew to
the retributive imperative. But whether we agree with Moore about all this
hinges on whether 1) we agree with Moore’s claims about the virtue and
theoretical probity of retributive versus sympathetic emotions, and 2) whether
we agree that maximum coherence should be the driving feature of a true theory
of justice. I shall contest both these claims.

Moore, very much to his credit, bends over backwards to present the strongest
case against the virtue of retributive emotions, which he then tries to
rebut in the chapter entitled "The Moral Worth of Retribution". He candidly
admits that retribution is often motivated by what Nietzsche described with the
word ressentiment. Moore defines ressentiment
as "a witches’ brew: resentment, fear, anger, cowardice, hostility, aggression,
cruelty, sadism, envy, jealousy, guilt, self-loathing, hypocrisy and
self-deception" (120). Moore says "It may well be that insofar as the
retributive urge is based on such emotions as these…the urge is bad for us"
(125).

But,
he points out, there are also virtuous emotions which ground retribution,
namely the "moral outrage" that often is inspired by witnessing or contemplating
flagrant acts of wrongdoing that cause suffering, and the often appropriate
sense of guilt when we ourselves do something wrong. In both cases, we might
feel that retributive punishment is fairly imposed on the offender, that it is
deserved, whether the offender be someone else or ourselves. Not to feel
these emotions, Moore says, is to be morally defective, and the virtue of such
feelings is evidence for the truth of retributivism, since virtuous feelings
come with "good epistemic credentials" (147). As Moore says about guilt: "Our
feelings about guilt thus generate a judgment that we deserve the suffering that
is punishment. If the feelings of guilt are virtuous to possess, we have reason
to believe that this last judgment is correct, generated as it is by emotions
whose epistemic import is not in question" (148). It is this intuition of
desert, generated by guilt and moral outrage, Moore says, that makes it not only
permissible
to punish wrongdoers, but that makes it morally required to punish them,
even if no other desirable outcomes follow from retribution (148, 154). So
although retribution may indeed sometimes be inspired by despicable motives and
emotions, for Moore that doesn’t undercut its valid basis in some virtuous moral
sentiments.

Assuming for the moment that Moore has indeed demonstrated the virtue and
reality-revealing nature of some retributive emotions, what about sympathy,
e.g., "the sympathy we may feel for wrongdoers whose wrongdoing was caused by
factors such as social adversity or psychological abuse during childhood"? Moore
writes: "There are three things to say about this range of moral experience.
First, the moral judgment it seems to support does not fit with the much larger
set of judgments about responsibility that we make in daily life. In seeking the
most coherent expression of our moral judgements considered as a whole, these
sympathetic judgements may simply have to be discarded. No area of human
knowledge is perfectly coherent. Any systematic exposition of our sensory
experience, for example, has to disregard certain visual experiences because
they give us inaccurate information about the world…The same can be said of our
sympathetic responses to disadvantaged criminals" (544, my emphasis). In other
words, to minimize conflict in our judgments, we must disregard the sympathies
generated by the adversities undergone by offenders. Such sympathies are
inconsistent with our more numerous and powerful retributive inclinations, and
furthermore they are "inaccurate" in some sense.

On
the face of it, this seems arbitrary, to say the least. Conflict between
retributive feelings, even virtuous ones, and sympathetic feelings (which at
least initially seem virtuous) may simply reflect a real moral conflict, and to
discount one side of the conflict in order to preserve theoretical coherence
might well compromise theoretical accuracy. We may well have both
feelings about an offender (if not simultaneously, at least in succession), both
of which reflect sets of circumstances that pertain to the case. Moore’s
comparison of sympathetic feelings to inaccurate visual information assumes that
our sympathy is somehow misplaced, but of course he has to prove this.

Secondly, and in response to just this point, Moore goes on to say, "…just as we
discount our experience with sticks looking bent when immersed in water because
we can explain the experience away, so we should discount any sympathy for
disadvantaged criminals if we can explain why we feel that sympathy in terms of
extraneous factors." Moore suggests two such factors: "our own guilt at not
having done enough to alleviate ‘unhappy’ causes of crime, or…our sense that
those who became criminals because of adverse circumstances have ‘already
suffered enough’" (545). But even if we discount these causes of sympathy as
extraneous, surely there are others that are not. Contemplating the chaotic,
punitive and often dangerous conditions that disadvantaged offenders grow up in
often generates sympathetic compassion, for indeed were any of us raised in
those conditions, we too would be more likely suffer the same criminal fate.
Putting ourselves in the disadvantaged shoes of an offender should
inspire sympathy, for if it does not, then we are supposing that we would have
been immune to the influences that shaped her. From a naturalistic perspective,
which Moore shares, in which human beings are determined by environment (as well
as heredity), such a supposition is clearly false, and the lack of sympathy it
generates is a clear moral defect. Such sympathy may not outweigh feelings of
outrage, but it nevertheless reflects circumstances as real as the crime
committed, and so is not a "moral hallucination" on a par with the bent stick
illusion. 2

Third
and lastly, Moore says about sympathy that "..we have reason to discount certain
experiences and the intuitions they generate when, on examination, their
appearance of moral goodness proves deceptive" (545). Moore goes on to speculate
that our sympathies for disadvantaged offenders might be due not to any laudable
variety of compassion, but to unconscious feelings of superiority to the
offender, or perhaps the elitist refusals to judge others by the standards we
impose on ourselves or to acknowledge the moral dignity and autonomy of others
(546). If these were the only source of our sympathy, then its moral goodness
(and epistemic credentials) would be put in question, but since there is
another robust source, the compassion described above, its goodness stands
unchallenged. This point is the same Moore himself makes about the sources of
retributive judgements: some sources are morally dubious, but since others have
merit, retribution survives in his theory. So, even by Moore’s own criterion of
moral virtue, sympathy passes muster, and thus it seems we might concede it a
role in a theory of criminal justice and in the disposition of criminal cases.

To
recap: to achieve a maximally coherent theory of criminal law, Moore wants us to
jettison our sympathetic responses to disadvantaged criminals. This would give
retribution freer reign, no doubt simplifying the mission of criminal justice.
We should discount sympathy because it is morally hallucinatory (it doesn’t
accurately represent moral reality, just as a bent stick in water doesn’t
accurately represent the true physical state of the stick) and because its
sources are morally dubious. I think Moore is mistaken on all counts. In reverse
order, it appears that sympathy can be morally good, that is, it can stem
from what we acknowledge is a moral virtue, namely compassion. Second, such
sympathy accurately reflects a significant aspect of moral reality, namely the
punitive and distressing conditions associated with increased criminality. To
ignore such conditions and the compassion they inspire is to give short shrift
to an important dimension of our moral universe. Third, we cannot, on grounds of
seeking coherence, simply dispense with sympathy as an emotional outlier when
forming judgements about criminal offenses. Rather, it justifiably competes with
our retributive inclinations. This theory isn’t as clean as Moore’s, but it does
better justice, I submit, to the often ambiguous and conflicting moral reality
we inhabit.

At
the very least, then, we must admit the legitimacy of emotions that counteract
purely retributive judgements against an offender. This suggests that, despite
Moore’s argument for its essentially retributive basis, criminal justice might
have, or seek to have, among its aims the pursuit of goods other than the
imposition of suffering on the offender. (Of course one need not believe, as
does Moore, that such suffering is an intrinsic good in the first place.)
Criminal law has indeed evolved so that its primary functions are to first
determine culpability and then impose a just punishment, where what is just is
often conceived in terms of desert based on moral responsibility involving an
ultimately originative agent.3 And desert, on
this interpretation, means that offenders deserve to suffer punishment,
whether or not punishment entails other beneficial outcomes. Although Moore
rejects the super-naturalistic idea of a libertarian agent, his concern is to
show that the only broadly consistent account of our present criminal justice
practices is nevertheless retributive. He might be correct in that claim, even
though other rationales for punishment are widely endorsed. However, even
granting that Moore has captured the essence of the aims of criminal justice in
his theory, this still leaves open the question of whether, given our increasing
knowledge of the causes of criminality that lie outside the individual, and the
mitigation response sometimes generated by this knowledge, retribution should
be the primary aim of criminal justice.

If,
as Moore argues, our virtuous emotions are reasonably good heuristic guides to
moral reality, and if virtuous compassion and sympathy therefore reflect morally
significant facts about an offender’s circumstances, why shouldn’t they compete
with retributive emotions in determining our response to a crime? This is to
say, why shouldn’t our response include dealing, via social policy, with the
formative circumstances of the offender and others like him, circumstances that
might well have been our lot in life? Or, taking another route from sympathy,
why shouldn’t our response include the non-punitive reformation of
criminals and restitution of damages, to the extent feasible? To seek the
suffering of the offender is just one of many possible responses to crime and
injury done to us, and although criminal justice has traditionally taken the
imposition of retributive punishment as its primary, often sole objective, this
need not remain the case. Indeed, various movements to reform the aims of
criminal justice are already well established.4

Further, even if offenders don’t happen to inspire sympathy (think of the
Menendez brothers, seemingly spoiled by their parents into becoming their
slayers, or imagine some perfectly rational, unapologetic torturer), the causal
story behind their behavior can still justifiably inform our response to their
cases. Since we want to avoid future disasters like the one before us, we want
to remedy, not replicate, those factors - biological, familial, social, etc. -
that induced malevolence or calculating disregard for another’s welfare in the
first place. In our system of criminal justice, we don’t want to model and
therefore implicitly endorse as means of behavior control the very conditions we
know produce and reinforce manipulative egotism and pathological brutality. So
as much as we may not like the offender (and may well find ourselves wishing him
harm), the smartest move in reducing the future prevalence of his offense may
well be not
to inflict suffering which further normalizes a punitive culture, but to
incarcerate him while keeping the aims of reformation, rehabilitation, and
restoration paramount. By denying ourselves retributive satisfactions in favor
of constructive approaches to both offenders and the circumstances that produced
them, we serve a better purpose: the creation of a less punitive, more
flourishing culture in which we and those that follow us are less likely to face
the temptations of retribution itself.5

The natural function of morality

But
even if we grant sympathy and the appreciation of causes a role in our response
to crime, a more basic question still remains, one that challenges Moore’s
account at a deeper level. It is certainly the case that most of us have
retributive impulses from time to time, and that many of us might revel (though
some might be loath to admit it) in the suffering of those who have
intentionally and seriously harmed us or our loved ones. But what finally
justifies
the state in imposing such suffering? Remember that Moore explicitly sets aside
the benefits of deterrence, incapacitation, and reformation as serendipitous
side effects of punishment – they are not its central aim on his account. In
fact, quoting philosopher F.H. Bradley, Moore says these non-retributive
justifications for punishment "are just bad reasons for what we believe on
instinct anyway" (99). Since utilitarian justifications are ruled out, the only
remaining justification available is that the suffering of the culpable offender
is an intrinsic good. But what, one might ask,
makes it good? From whence comes its value? The only plausible answer, I
think, is our bare desire for it: the basic instinct to retaliate against those
who harm us confers its value. Suffering is judged "intrinsically" good only
because we wish for its realization in the object of our retribution (if we do
indeed wish for this). There is simply no other naturalistic source for its
value, once one sets aside the derivative consequential values of deterrence,
incapacitation, etc. Moore’s case for retribution, based as it is on a series of
thought experiments designed to "rouse…our retributive juices," centers on this
basis for its worth (83-103).

One
might go metaphysical here, and claim that Retributive Good is some sort of
Platonic absolute, written into the deepest level of reality. But although Moore
types himself a moral realist, he doesn’t take this route, but instead cashes
out his realism in the characteristics of culpability: "voluntariness of action,
accountability, intention, causation, and lack of excuseor
justification" (131).Although as Moore says, these characteristics are
higher level properties of action that can’t be specified in physical terms,
they are nonetheless natural properties, so responsibility and desert are
in turn natural properties. The good of an offender’s suffering, then, is keyed
to his meeting these naturalistic requirements, most of which have to do with
rationality (recall the opening discussion about rationality and the excuses).
But why, if an offender’s suffering is an intrinsic good, does the
justification for imposing it depend on meeting these requirements? Why is
suffering justifiable only for certain classes of offenders? This question
immediately suggests that their suffering is serving some purpose which the
suffering of innocents does not serve.

One
can say, well, it just happens that we desire the suffering of offenders who are
culpable by virtue of being rational, without excuse, etc. and it just happens
we do not desire the suffering of innocents or the insane. The value of
suffering is indeed a function of our desire for it, and our desire just happens
to track the rationality of the offender. But of course inquiring minds will
persist in asking the further question of why our desire to impose
suffering tracks rationality in this fashion. That Moore seems not to address
this issue strikes me as a serious lacuna in his argument, an omission that
allows him to insulate the retributive impulse from its less than glamorous
natural function, and so exalt it as involving a supposedly intrinsic, morally
superior good that has priority over consequentialist and utilitarian goods.

The
natural function of praise, blame, retaliation, reward and other
morality-invoking emotions and responses, what philosopher Peter Strawson in his
classic paper "Freedom and Resentment" dubbed "reactive attitudes," is not
difficult to discern: it is to shape behavior in ways advantageous to both
individuals and societies. Retaliation against an aggressor that has harmed
oneself or one’s loved ones undoubtedly serves to deter or thwart the
aggression, so the disposition to retaliate embodied in retributive emotions
such as resentment and rage is an essential characteristic of creatures who make
the evolutionary cut. But equally, the disposition not to harm those who
have done us no harm is just as important, since the advantages of punishment
only accrue if it is selectively
applied. Thus the strong intuition of fairness which says, in essence, "don’t
ever punish the innocent" can be seen as on a par with other reactive,
morality-invoking attitudes, something deeply built into us by virtue of its
natural utility in helping to distribute retaliatory harms, so that punishment
is vigorously applied
to deter aggressors and defectors and vigorously withheld in order to
build affinity and cooperation. And on the positive end, we are built to respond
with praise and other rewards to behavior we want reinforced. Thus the direction
and depth of our reactive attitudes and moral responses track the type of
behavior we are responding to, and help encourage or discourage it, depending on
our interests.6

It is
in this context that we can understand the connection between rationality and
responsibility, and the exceptions to assigning responsibility we call excuses.
As foreshadowed in the section "Excuses and the function of punishment" above,
the requirement that people be rational and uncoerced to be held responsible
picks out only those individuals for whom a reactive response such as praise or
blame is capable of and needed for shaping their behavior.7
We might experience a surge of anger at someone we judge has attacked us without
provocation, but if we discover the person was undergoing an epileptic seizure,
or was being forced upon threat of death to attack us, our response changes
quickly as it takes this new information into account. Such sensitivity to the
causes of behavior is clearly essential if our responses to others are to
function efficiently in channeling their behavior within acceptable norms. The
reason that excuses excuse is that they reveal causes which render the person in
question an inappropriate
target of blame: generally speaking it’s a waste of time and resources to punish
those who can’t appreciate or act on the knowledge that punishment is a possible
consequence of their behavior. Our reactive attitudes and our more deliberate
moral practices reflect this.

Similarly, it’s counterproductive to punish the innocent since they don’t
need such dis-incentives to act better – they didn’t misbehave in the first
place. Their (and our) outrage at and resistance to being punished tracks the
dis-utility of such punishment. That our attitudes about punishment are so
responsive to the causal origins of behavior shows that the norm of fairness is
built into our nature as beings that seek appropriate, functional responses to
the behavior of others. This explains why proposals to punish the innocent to
achieve some utilitarian goal (e.g., general deterrence) meet such stiff
emotional resistance: they run headlong into a hard-wired, functional
disposition to make punishment contingent on actual wrongdoing by the individual
who is to be punished.

This
naturalistic account of our reactive attitudes and moral practices implies that
retribution, which might seem to be an intrinsic good, in fact plays a
functional role in bringing about other social goods, namely the advantageous
shaping of behavior, such as deterring further aggression on the part of those
who receive their "just deserts". To see retribution in this light – as a means
to an end, not an end in itself – raises the question of whether there are not
better, alternative means to the ends that retribution originally served. We can
understand the desire to retaliate in response to an attack as an essential
characteristic of creatures who have made the evolutionary cut. But, in the
light of what science tells us about the causes of behavior, it’s reasonable to
ask whether our emphasis on retaliatory justice – retribution – is, all things
considered, the best way to reduce unwarranted aggression. When we discover the
environmental and biological precursors to violence and see that maladjusted
criminals do not create themselves, the increase in our sympathies – the
mitigation response – shows that we indeed track at an emotional level the
causal story behind criminality. Our retributive impulse is lessened because
other, more basic, and heretofore hidden causes have come into view, and it is
these that now demand attention. It is these that must be addressed to make any
real progress in reducing the future prevalence of the crime we are responding
to. The rough and ready punitive judgment which unreflectively takes the
individual as the uncaused originator of behavior, and therefore the primary
retributive target, is attenuated and deflected by a naturalistic, scientific
understanding of ourselves into far more productive avenues of response.
Reactive attitudes are genetically given, sometimes crude (precisely because
they sometimes take agents as uncaused causes), indicators of how causality
operates, which science and the rational appreciation of external factors can
modulate to good effect: unless directly threatened or in self-defense,
enlightened folk attack policies, not persons.

Reforming the aims of criminal justice

Moore’s naturalism has not led him to such a conclusion, even though he, like
myself, concedes that science will eventually fill in all the gaps in our
understanding of mind, brain, and behavior, thus revealing the causal story
behind each and every offender. For Moore, knowing that criminality is indeed
generated by circumstances well beyond the control of the criminal, that in fact
whole populations are doomed to much higher rates of criminality due to
environmental factors, does nothing and should do nothing to mitigate our
retributive inclinations, or to shift the aims of criminal law from the punitive
to the ameliorative. I suspect, but cannot prove, that this is because he hasn’t
taken his naturalism far enough to see the natural function of retribution
itself. As discussed above, Moore’s criteria for moral agents – rationality and
lack of coercion or duress – are just those which pick out individuals for whom
retribution might efficiently function as a deterrent. But Moore’s insistence on
the intrinsic good of retribution, based on our desire for it, must suppress
this connection, since after all to admit that retribution serves a function,
however imperfectly, means that the goal it aims at – the socially advantageous
shaping of behavior – is itself a good. And if that good has a claim on us, as
it surely does, then it forces us to consider whether retribution is the best
means to that end. Also, it might well be the case (I believe it is
the case) that seeking to impose just deserts as a supposed end-in-itself
substantially conflicts with achieving a society which minimizes unnecessary
suffering and maximizes human flourishing. Forgoing our pound of flesh in favor
of non-punitive detention, re-education, and social reforms such as education,
community development, and economic empowerment, is the best route to good
behavior.

If
one divorces, as does Moore, the desire for retribution from any socially
desirable function or outcome, how does one justify acting on it? It
can’t be just because we desire it. After all, there are many desires we
might have, some of which may well produce suffering in others, that we can’t
justify acting on. Moore makes vivid the motivational basis for retributive
justice, and shows that at least some of the emotions underlying it have virtue,
such as our outrage at the unnecessary suffering of victims. But what makes this
outrage morally virtuous (when it doesn’t slide into vindictive pleasure at the
suffering of the offender) is precisely that it seeks a good consequence,
namely the ending and prevention of victims’ suffering. To make the case that
retribution is an intrinsic moral good, it seems Moore must connect it to
something more than the bare desire that an offender suffer in turn. But any
step outside that desire, or any demonstration of its virtue, must involve some
sort of consequence, some outcome, some good that the imposition of the
offender’s suffering brings about. Some obvious consequences of retribution one
could cite are, of course, that offenders are incapacitated, deterred (perhaps),
and reformed (rarely). But since Moore explicitly disavows these as playing a
role in his account of the law - he says they are just the "bad reasons for what
we believe on instinct anyway" - it seems that the intrinsic moral worth of
retribution can only be a matter of instinct, of desire. But why should we agree
that something is a moral good if its only justification is to satisfy a
desire that someone should suffer? There has to be more to it, but what that is
goes unsaid in Placing Blame, as far as I can see.

Moore
may have properly described and diagnosed our criminal justice system as one
largely preoccupied with quenching our thirst for retribution. He suggests that
talk about deterrence, reform, rehabilitation and the like is just window
dressing to disguise the simple truth: we want our pound of flesh. But this is
not to justify that desire or the system that satisfies it. As much as Moore
wants to elevate retribution to the status of the reigning moral
principle of criminal justice, and by implication defend the criminal justice
status quo, I believe the attempt fails. The retributive impulse is not
our only response to the facts of crime, especially once we are exposed to the
science of behavior, a science Moore emphatically endorses. The mitigation
response – the sympathy, compassion, and forbearance we feel when learning of
the causes behind criminality – has an equal role to play in determining how we
should deal with offenders; it is not a moral hallucination. Just as our
"retributive juices" are stirred by accounts of horrific crimes, inflicted by
monsters on innocent victims, so too our more reflective, deliberate, and
considered responses are engendered by discovering exactly how monsters are
created, and how many are the result of unchecked retribution itself as it plays
out in families, schools, prisons, and wars. These responses are virtuous, based
as they are in the naturalistic truth that but for circumstance one’s fate might
well have been the offender’s, and leading as they do to policies that seek to
reduce suffering, not increase it. The restorative and ameliorative principles
of justice thus stand as strong competitors for our allegiance compared with any
retributive principle that might account for criminal justice as it now exists.

Furthermore, talk of deterrence, rehabilitation, restitution, and other
utilitarian aims of criminal justice is not just window dressing, and for
this reason Moore’s account falls short even as a description of principles
underlying the law. The fact that thought experiments might show that we want to
exact suffering from an offender even if this suffering entails no social goods
hardly proves that such goods are incidental. And as I have taken pains to show,
the natural function of seeking retribution is itself
nothing other than bringing about such goods, even if we now have better means
of achieving them. Moore can only make his case for the intrinsic good of
retribution by obscuring or ignoring this natural function, but once revealed,
it shows us that however perverse the criminal law may be in giving pride of
place to retribution, it is at heart a utilitarian enterprise. Inflicting
suffering can deter and incapacitate, which is why we are hard wired to
inflict it on those who harm us or our loved ones. The law has taken this over
as an official, not personal, matter, and to some extent socialized and
channeled it. But it remains a function with an outcome, not merely a
process of administering just deserts that are somehow disconnected from social
utility. To imagine or claim that retribution serves no social ends is to
insulate it from a wider, socially informed critique that considers other means
of achieving the goals that it sometimes (crudely, with much suffering) attains.
Since our desire for retribution is just one aspect of our creaturely
disposition to shape behavior advantageously, and is not morally more real or
virtuous than the compassionate, preventive and restorative responses to crime
inspired by a scientific understanding of behavior, we are entitled to ask
whether this desire should any longer remain, either in rhetoric or reality, one
of the central motives of criminal justice.

TWC 12/2001

Endnotes

1. Stephen Morse takes the same compatibilist line in "Waiting for Determinism
to Happen" (no longer online, unfortunately) and other papers (see references).
Although Moore and Morse both subscribe to an inclusive naturalism that denies
libertarian free will, my guess is that the majority of legal scholars are
incompatibilists who assume that responsibility depends on our having such
freedom.

2. Moore brings up the case of Richard Herrin, a Yale student from the barrios
of East Los Angeles who killed his college girlfriend. Although Moore
acknowledges that "we certainly have never been subject to the exact same
stresses and motivations as Richard Herrin" he claims that "Herrin had no excuse
the rest of us could not come up with in terms of various causes for our
choices" (149). But without saying that Herrin should have been excused for the
murder, it’s still true that the "various causes" of his choices may have been
quite different from the causes that shape the choices of those not subject
to the stresses of the barrio. To the extent those stresses played a causal role
in the choice to kill (by, for instance, shaping Herrin’s character and
motives), and to the extent that we can imagine ourselves having the bad luck to
be exposed to such stresses, then we might discover the beginnings of compassion
for Herrin, without discounting the horror of what he did.

3. Some, such as Derk Pereboom in his book Living Without Free Will, take
moral responsibility to mean, strictly and only, that sort of responsibility
which requires that agents be the "ultimate sources of their actions" (xv).
Since no account of such ultimate agency is sustainable, he argues, moral
responsibility doesn’t exist. My tack here and elsewhere (see my
Naturalistic Lexicon of Responsibility) is to argue that we can be
morally responsible in a naturalistic, fully deterministic, and therefore
compatibilist sense. That is, we can be morally responsible in a way that
conforms with enough of the original and useful sense of that expression such
that it is worth keeping. As Daniel Dennett has pointed out (forthcoming), the
substantive differences between compatibilists and incompatibilists might be
small (as they are between myself and Pereboom, who takes much the same line
against retribution as I do here), and that the differences can lie mostly in
the choice of rhetorical tactics: which expressions to redefine naturalistically
and which to drop as too contaminated by supernaturalistic connotations. I’ve
chosen to keep "moral responsibility" but to drop "free will." Dennett keeps
both, Pereboom keeps neither, but I won’t address here the question of whether
that reflects a substantive difference in their views.

4. In his book Preventing Violence, James Gilligan describes recent
developments in criminal justice which illustrate the possibility of moving away
from retributive towards restorative and therapeutic objectives. See especially
the chapter "Tertiary Prevention: Therapeutic Intervention" on alternative
sentencing practices which minimize counterproductive suffering and recidivism
while maximizing opportunities for rehabilitation and restitution. Overall, the
book offers both a cogent rationale for rejecting retributivism and specific
steps to take in refashioning, from the bottom up, our response to violence.

5. It is of course an open question as to whether and how much restorative and
rehabilitative aims may conflict with the goal of deterring offenders, which on
the face of it implies the threat of suffering. The default assumption should be
that the loss of liberty that comes with incarceration is itself a sufficient
deterrent, and that any further suffering or deprivation must be empirically
shown to have an additional and necessary deterrent effect in order to be
justified.

6. Moore (177-180) cites and responds to John Mackie’s evolutionary account of
reactive attitudes (in Mackie’s articles cited in references) which seems very
close to the account sketched here. Moore points out that this sort of
psycho-social explanation of our retributive dispositions doesn’t mean there
can’t also be an objective moral reality to which our attitudes are responsive.
I’m saying that moral reality coincides with the functional facts of
moral practice as they have been shaped by evolution and continue to be shaped
by culture. Morality doesn’t have or need a non-functional, deontological
component. Our attitudes and practices don’t reflect an underlying or hidden
moral reality, they are
parts of that reality.

7. As in my account, Stephen Morse ("Waiting for Determinism to Happen," pp.
6-8) connects the rationality requirement for punishment with the action-guiding
function of the law, citing Jay Wallace (see references). However, Morse (like
Moore) thinks that something more than such a consequentialist, forward-looking
role for the law is necessary to fully account for our criminal justice
practices. Some backwards-looking, deontological constraint, he thinks, is
necessary to block questionable practices such as the punishment of the innocent
to achieve utilitarian ends. I don’t think we need resort to such a blocker,
since our hard-wired disinclination to punish the innocent - to make punishment
contingent on actual wrong-doing - finds sufficient support in the empirical
discovery that punishing the innocent is unnecessary to achieve social
goods, and indeed is usually counter-productive given the strength of this
disinclination. In "Deprivation and Desert" (p. 121), Morse mentions the
expressive function of the law as a non-consequentialist component of criminal
justice, but how this would block the utilitarian abuse of punishment isn’t
clear to me.